Menendez formally seeks mistrial in bribery case

Lawyers for Sen. Bob Menendez — on trial in federal court for bribery and other corruption charges — formally declared in a court filing Sunday that they will seek a mistrial, declaring the judge overseeing the case is biased and has prevented the New Jersey Democrat from presenting his case.

Menendez and his co-defendant, Dr. Salomon Melgen, were charged in April 2015 with bribery following a lengthy FBI probe. Menendez is alleged to have accepted hundreds of thousands of dollars in improper gifts and campaign contributions as bribes in exchange for using his office to help Melgen, a close friend and donor. Both have denied any wrongdoing, although Melgen has already been convicted in a related case for overbilling the Medicare program for millions of dollars.

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During a contentious hearing Thursday, defense attorneys repeatedly challenged U.S. District Judge William Walls and said they would file a motion for a mistrial. Walls is almost certain to rule against them.

Menendez and Melgen’s attorneys, however, are clearly setting up grounds for an appeal if they are convicted at the end of this trial. Arguments over the defense motion will take place this week.

And filing an appeal would not save Menendez’s Senate seat. If he were to be found guilty, Menendez would have to resign from the Senate at some point or face possible expulsion. While that doesn’t mean Republicans would get the seat — Democrat Phil Murphy is expected to win New Jersey's gubernatorial election next week, meaning he could appoint a Democratic senator once in office — it shows once again how high the stakes are for Menendez in the legal battle, both personally and politically.

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“Defendants seek a mistrial because the Court’s evidentiary rulings and comments throughout this trial evince a cumulative abuse of discretion that has deprived Defendants of their Fifth and Sixth Amendments rights to a fair trial, to an adequate defense, and to confront the witnesses against them,” lawyers for Menendez and Melgen formally asserted in Sunday’s motion.

“At bottom, however, Defendants’ concerns are typified by the Court’s parting words at [Thursday’s] hearing: ‘Life is not fair and so too is judicial discretion.’ Despite the light-hearted nature of the Court’s comment, the fact remains that judicial discretion must be exercised fairly — otherwise, by definition, it is an abuse of discretion. ... Defendants submit that at key moments through this trial, the Court’s rulings have been unfairly prejudicial, inconsistent, and contrary to law.”

The defense lawyers claimed Walls “has erroneously excluded relevant and admissible testimony, documents, and witnesses called by the defense that would provide critical support to following the defense theories: (1) that Defendants share a genuine friendship, (2) that Defendants lacked the requisite criminal intent to engage in a bribery scheme, (3) that Senator Menendez’s advocacy for Dr. Melgen in the areas of Medicare and port security were objectively reasonable, and (4) that there was no concealment. As a result of the erroneous exclusion of this evidence, Defendants have been deprived of the opportunity to present a defense.”

Menendez and Melgen’s chief complaint is that Walls refused to allow two defense witnesses to testify.

Defense lawyers wanted the first witness — Amy Bassano, an employee for the Center for Medicare and Medicaid Services — to answer questions about the uses of an eye drug. Melgen was convicted for overbilling the federal government for millions of dollars in payments for that drug, which was used extensively in several clinics he owns in Florida. Menendez repeatedly intervened in Melgen's billing dispute with CMS and the Department of Health and Human Services. Federal prosecutors said this was part of the corrupt scheme between the two men, while Menendez and Melgen's lawyers counter that it was a legitimate issue for the New Jersey Democrat to wade into.

The second witness was Marc Elias, an attorney hired by Menendez following media reports in late 2012 that the New Jersey Democrat had failed to report a number of flights on Melgen’s private jet. Menendez reimbursed Melgen for some of those flights, but the controversy led to the FBI investigation, and, eventually, criminal charges against both men.

Other defense complaints include: Walls failed to allow questions to certain witnesses or limited the number of defense questions; barred the introduction of documents offered by the defense; “cross-examined” defense witnesses directly from the bench; and “showed bias against the defense by making inconsistent evidentiary rulings in favor of the prosecution." They also allege that the judge has been “improperly pressuring defendants to testify” through his actions.